Articles Posted inFederal Sentencing

The First Circuit’s decision in United States v. Lopez-Pastrana, 15-1894 (1st. Cir. May 4, 2018) is long, but can be summed up simply: federal courts can’t impose a term of supervised release on a charge that resulted in no prison time, even if the sentencing court is trying to help the defendant obtain federally-subsidized medical care for a serious condition. Here’s what happened in Lopez-Pastrana:

The Government charged Mr. Lopez-Pastrana with two drug crimes and two weapons crimes. He entered into a plea agreement. Mr. Lopez-Pastrana would plead guilty to possession of marijuana with intent to distribute (Count III) and possession of a firearm in furtherance of drug trafficking (Count IV). In exchange, the Government would dismiss Counts I and II. The agreed-upon (but non-binding) sentencing range was zero to six months imprisonment for Count III, and a 60 month mandatory-minimum on Count IV. Of course, there was an appeal waiver in the plea agreement.

At sentencing, Mr. Lopez-Pastrana explained he has Chronic Obstructive Pulmonary Disease (“COPD”), which, if you believe the commercial, makes you feel like an elephant or some other large animal is sitting on your chest. His sentencing attorney told the district court that Mr. Lopez-Pastrana had a 20% chance of surviving the next four years. The Government thought he was overstating the matter. According to the Government, the Bureau of Prisons represented that “his medical condition is not an end-stage disease” and that his condition had improved during the four months he was incarcerated and awaiting sentencing. (Aside: BOP has a very high opinion of its ability to care for sick people. Check out the 11th Circuit’s opinion in United States v. Seecharan, where a defendant’s doctor opined the defendant would die of infection if he went to prison, and the district court ordered incarceration based on BOP’s response was that it “could handle anything.” Happily, the 11th Circuit reversed for resentencing).

Back to Mr. Lopez-Pastrana. The district court sentenced him to 60 months in a prison medical facility on Count IV, with 5 years of supervised release. But the sentence on Count III engendered some debate. The district court basically gave Mr. Lopez-Pastrana an ultimatum. Option 1: 12 months of home confinement with federally funded medical care as a condition of supervised release, and no time in prison. Option 2: 6 months in prison. Mr. Lopez-Pastrana took the 12 months of home confinement and appealed.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar. He practices in federal appellate courts around the country and is the founding member of The Brownlee Law Firm. To learn more visit appealattorney.com or email Mike at mbrownlee@brownleelawfirmpa.com.

The district court sentenced William Dahl as a career sex offender under U.S.S.G. § 4B1.5, having decided that Dahl’s two prior Delaware convictions for unlawful sexual contact with minors qualified as “sex offense convictions” under 18 U.S.C. § 2426(b)(1)(B)).

Section 4B1.5 applies when a defendant has a prior “sex offense conviction,” which includes “any offense [covered by 18 U.S.C. § 2426(b)(1)] … perpetrated against a minor.” Section 2426(b)(1)(B), in turn, encompasses any “conviction” for a state sex offense “consisting of conduct that would have been an offense” under listed federal statutes.

As in any good defense-oriented discussion of a sex offense involving a minor, your blogger will gloss over the facts. The legal issue was whether the district court should have done the same. Specifically, the issue was whether the “categorical approach” applies in determining whether Dahl’s state convictions qualify as “sex offense[s]” under § 2426(b)(1). The “categorical approach,” as many readers of this blog will know, requires courts to look only to the elements of the predicate offense, rather than to the facts underlying the conviction, to determine whether the offense supports a recidivism enhancement. E.g., Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). Thus the enhancement does not apply if it is possible to commit the predicate offense with conduct that would not merit the enhancement, even if the defendant’s own conduct would. Continue reading →

Here is a recap of some recent victories from the Sixth Circuit. Good to see vigilant defense counsel using foresight to prevent undue restrictions resulting from sentencing conditions.

United States v. Arnold. Sixth Circuit: A jury convicted Appellant of being a felon in possession of a firearm. At sentencing, the district court departed upward, at least in part, because of its concern that a longer term of imprisonment was needed to ensure that Appellant received appropriate mental health treatment. Specifically, the district court found that Appellant’s “anger” warranted an upward departure to promote public safety, but also that Appellant so needed a “psychiatric intervention” that the Court felt compelled “to grant the government’s motion to go outside and above the sentencing guidelines” to ensure the Appellant would receive that treatment. The Sixth Circuit found that the district court abused its discretion.

United States v. Kelly. Sixth Circuit: Appellant violated his terms of supervised release by failing to register as a sex offender. As part of its Judgment, the district court imposed that district’s rote conditions of supervised release for sex offenders. But the Appellant’s last sex offense predated the revocation by 26 years. Moreover, the record demonstrated that Appellant had a low likelihood of recidivism (for sex offenses), had no mental disorder, had benefitted from previous therapy, and the age had lessened the risk of re-offending. Under such circumstances, the district court abused its discretion and the sentence was substantively unreasonable. The case further highlights the need for Counsel to be vigilant when Courts seek to impose “standard” conditions of supervised release.

Bonifacio Toribio-Almonte was indicted on two counts: (1) conspiracy to import five kilos or more of cocaine and one or more kilos of heroin into the U.S., and (2) conspiracy to possess and distribute five kilos or more of cocaine and one or more kilos of heroin on board a vessel within U.S. customs waters. On the morning his trial was set to begin, he pled guilty without a plea agreement.

Mr. Toribio-Almonte’s guideline range was 188-235 months in prison. He requested a sentence below the guidelines, or at the very least, his minimum mandatory sentence, which was 120 months. The Government requested a 235 month sentence. To support its request for a sentence at the high end of the guideline range, the Government claimed Mr. Toribio-Almonte was a leader or organizer of the conspiracy. The problem for the Government was that it had no evidence whatsoever to back up its claim.

If a defendant takes the stand during a pre-trial evidentiary hearing, or during a trial, and provides testimony that is materially false, it can form the basis for a two point sentencing guidelines enhancement for obstruction of justice. In 1993 the U.S. Supreme Court in U.S. v. Dunnigan, stated that when deciding whether to apply this enhancement, the court must use the federal perjury statute (18 U.S.C. 1621) as a guide. The trial court must review the evidence and make an independent finding that material testimony was not only false but also intentionally misleading.

In a December 9, 2015 opinion entitled U.S. v. Thompson, the Second Circuit granted the Defendant’s appeal and found that the district trial judge failed to make a finding of specific intent to obstruct justice by simply adopting the general conclusions of the pre sentencing report.

When the DEA executed an arrest warrant for Thompson, he allegedly consented to a search of his home. Later he was indicted for conspiracy to possess with the intent to distribute controlled substances. Thompson challenged the search of his home seeking to suppress the digital scales and cash recovered. During an evidentiary hearing Thompson testified that the DEA agents said that if he did not consent to searching his home, his sister and girlfriend would be arrested thereby improperly coercing his consent. Continue reading →

On December 15th the D.C. Circuit overturned for plain procedural error a severe sentence in another of those child pornography sting operation cases that appear with some frequency in this jurisdiction.

In a split opinion that is somewhat remarkable for its composition (Senior Circuit Judge Edwards and Circuit Judge Henderson comprising the majority with Senior Circuit Judge Sentelle dissenting) the Circuit reversed the conviction of James Brown, a defendant with a seeming penchant for sexual relations with underage females, including his daughter and at least one granddaughter. The Court found that the district court had plainly erred in sentencing Mr. Brown to a 144-month prison term, which was 47 months in excess of a jointly-requested low end of the Guidelines range and 23 months above the high end. In finding procedural error, the court sidestepped the appellant’s alternative claim of substantive unreasonableness. In particular, the panel found that the lower court’s explanation for an above-Guidelines sentence was inadequate under United States v. Akhigbe, 642 F.3d 1078, 1085-86 (D.C. Cir. 2011)).

Writing for the majority, Judge Edwards found that the district court had plainly failed to provide adequate in-court and written explanations for imposing a sentence that neither the prosecution nor the defendant had sought. Describing the Trial Judge’s in-court characterization of Brown’s conduct “spare and unparticularized,” the panel pointed out that the lower court’s explanation for the above-Guidelines sentence to have been a “‘mere recitation of . . . § 3553(a) factor[s] without application to the defendant being sentenced [which] does not demonstrate reasoned decisionmaking or provide an adequate basis for appellate review.’” (slip op. at 12) (quoting Akhigbe, 642 F.3d at 1086). Nor did the trial judge’s “unparticularized references to “actual abuse of children’ and ‘predatory conduct’ provide [any] basis for suggesting why the conduct described was more harmful or egregious than that accounted for in the Guidelines calculation, let alone why that conduct merited a sentence 23 months in excess of the applicable Guidelines range.” (slip op. at 12-13). In a similar vein, the Court found “unenlightening” the trial judge’s comment that “the combination of behaviors to which Brown pled is ‘not conduct we normally get around here,’” for that comment failed to explain why Brow’s behavior “was more egregious or harmful than that accounted for by the applicable Guidelines calculation.” (Id. at 3-14).

Gregory McLeod pleaded guilty to being a felon in possession of a firearm. The Government sought an enhanced penalty under the Armed Career Criminal Act (ACCA), arguing that Mr. McLeod had at least three prior violent felony convictions, all of which were South Carolina second-degree burglaries. If the Government was right, and the District Court believed it was, Mr. McLeod faced a prison term of fifteen years to life. If Mr. McLeod was right, he faced no more than ten years in prison. The Fourth Circuit doesn’t tell us more about the facts of his offense because what we really care about is what happened in South Carolina state court in 1998.

Mr. McLeod had a total of five convictions for second degree burglary. The District Court found that all five convictions were violent felonies. The indictments in “those cases charged McLeod with breaking and entering a commercial building with the intent to commit a crime.” Seems simple enough, right? But sometimes a state burglary isn’t a federal burglary.

In white-collar cases, loss drives the sentencing guidelines. If a person is convicted of a federal fraud charge, probably the single biggest legal issue that will matter to that person’s sentence is what the loss amount is.

By contrast, the biggest thing about the case that will matter is what judge the person draws. It’s better to have a great sentencing judge and a high loss amount than a low loss amount with a judge who sentences more aggressively.

But I digress.

The government’s view of most fraud cases, in my experience, benefits from the clarity of hindsight. After everything has fallen apart, it’s easy to see that, say, a person selling an investment vehicle was using a new investor’s funds to pay someone who is clamoring for his or her money back.

In hindsight, it’s easier to see a Ponzi scheme than it may be in the crush of the moment. Some people plan to run Ponzi schemes, others fall into them through circumstance. Such is the way of the world.

In any event, loss for a Ponzi scheme can be tricky. Generally, the loss amount under the sentencing guidelines is the amount of money that was reasonably foreseeable to be lost by the victims. And it’s what’s reasonably foreseeable for the person committing the crime.

Ok, fair enough. The trouble is with the “credit against loss” rule. The sentencing guidelines explain that when the person being sentenced has paid some money back before the authorities or the victims cottoned onto the scheme, that money should be deducted from the loss amount.

This makes sense. If my son steals $20 from my wallet, but feels bad and puts it back before I notice, he should get some credit for that.

Erica Hall was an office assistant at an OB/GYN office in Coral Springs, Florida. The job may not have paid well, because Ms. Hall was trying to make some extra cash on the side by selling patient information to some folks who would use it to get fake credit cards.

Ms. Hall was told by the folks the government described as her coconspirators that for every patient’s personal information she handed over, she’d be paid $200. If the information was able to be used to create a credit card that could be used, she’d be paid $1000 for that patient information.

Even though Ms. Hall handed over information for between 65 to 141 folks, and that 16 of those people had information that could be used to make fake credit cards, she was only paid $200.